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September 5, 2000

Mr. James L. Hall
Assistant General Counsel
Texas Department of Criminal Justice
P.O. Box 4004
Huntsville, Texas 77342-4004

OR2000-3442

Dear Mr. Hall:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 138685.

The Texas Department of Criminal Justice (the "department") received a request for a copy of a specific Internal Affairs investigative file in which the subject of the investigation is the requestor. You claim that the requested information is excepted from disclosure under sections 552.117 and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.131(a) relating to department inmates states in pertinent part:

(a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the Texas Department of Criminal Justice is excepted from the requirements of Section 552.021 if it is information about an inmate who is confined in a facility operated by or under a contract with the department.

(b) Subsection (a) does not apply to:

(1) statistical or other aggregated information relating to inmates confined in one or more facilities operated by or under a contract with the department; or

(2) information about an inmate sentenced to death.

We find that all but two pages of the submitted information is about an inmate who is confined in a facility operated by the department. Moreover, subsection (b) of section 552.131 does not apply to the submitted information. Finally, section 552.029 does not apply to any of the submitted information.(1) Therefore, the department must withhold the information under section 552.131. Accordingly, the department may withhold the submitted information except for the two marked pages that must be released.

We note that the two marked pages contain information that must be withheld under section 552.117(3). Section 552.117(3) provides that information which relates to the home address home telephone number, or social security number , or that reveals whether an employee of the department has family members is excepted from required public disclosure regardless of whether the department's employee complies with section 552.024 of the Government Code.

In this instance, the requestor is the subject of the investigation. Section 552.023(a) grants a special right of access to a person or a person's authorized representative to records that contain information relating to the person that are protected from public disclosure by laws intended to protect that person's privacy interests. See Open Records Decision No. 481 (1987) (determining that common law privacy does not provide basis for withholding information from its subject). Therefore, in this instance, as the requestor is asking for the department's investigative file in which the subject of the investigation is the requestor, she has a special right of access to the information normally excepted from public disclosure under section 552.117(3). Thus, the department may not withhold this information.(2)

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

NCL/pr

Ref: ID# 138685

Encl. Submitted documents

cc: Jude A. Marcon
708 Avenue U
Snyder, Texas 79549
(w/o enclosures)


 

Footnotes

1. Section 552.029 lists eight specific types of information about a department inmate that must be released. In this instance, section 552.029 is not triggered due to the nature of the request and the content of the responsive information.

2. We emphasize, however, that if the city receives another request for the information that relates to the requestor, and the person who requests that information does not have a special right of access to it under section 552.023 of the Government Code, the city should resubmit that information to this office and request another ruling.
 

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